Breath Tests in DWI Cases - To Blow or Not to Blow

One of the most frequently asked questions of criminal defense lawyers is whether or not a person is better off agreeing to take a breath test or refusing to take a breath test when pulled over by the police on suspicion of driving while intoxicated in New York.

The question is actually a tricky one because “better off” can depend on your point of view and on what you are trying to accomplish. The answer to the question is also heavily dependent on the state and local laws that apply. Every state has varying rules that apply to refusals to take breath tests, and so the equation changes in every state.

In truth, there is not one answer to this question that covers every case.

In fact, the question of “to blow or not to blow” is ultimately going to involve an assessment by the person of his taste for some level of risk. Whether it is risk of criminal conviction or risk of losing the privilege to drive for a period of time. Since different people have different tastes for risk, there is no one final answer that applies to everyone.

That being said, I do believe that most people, in most situations will probably consider themselves ultimately better off by agreeing to take the breath test when asked. Here are some of the considerations that have gone into this conclusion.

How important is your driver’s license to you?

If the answer is that you care about your license and there isn't some other overriding consideration like a seriously injured person, then my fallback position would be take the test.

If you have no care about your driver’s license at all then my fallback position might be NOT to take the test.

Refusing to take a breath test is highly likely to have one important consequence in New York that is completely independent of your driving while intoxicated criminal case: you will lose your license for a year, period.

This is highly likely to happen regardless of whether or not you win your trial or the government dismisses your criminal case. At your arraignment on the case, you will usually be provided a document that will alert you that because the police have claimed that you refused to take the test, your license is suspended. You will be given a date for a hearing at the Department of Motor Vehicles. At this hearing it will essentially have to be shown that the police officer had the right to ask you to take the test and that you refused. If this is shown (to a civil burden of proof to the satisfaction of an administrative hearing officer,) your license is gone for one year. You will NOT be permitted to have a conditional license. You will be unable to drive legally for one year.

Now it is true that police officers have been known from time to time not to appear at these "refusal hearings". If the police officer doesn't appear a couple of times in a row, your license may be restored. And this is where your taste for risk comes in. How much are you willing to bet that the police officer won't appear? Are you willing to bet your ability to drive legally for one year?

It is also true that if the police officer is unable to establish probable cause to stop you or that you didn't actually refuse, these hearings can be won. But again, what is your taste for risk here? Are you willing to bet your ability to drive legally for one year? You are not likely to be in a position when confronted with the decision to make a proper assessment of your likelihood of success at a refusal hearing.

On the other hand, even if you plead guilty to DWI (or go to trial and lose) and your license is suspended as a result, you will probably be eligible (in many cases) for a CONDITIONAL license that will at least make it legal for you to drive back and forth to work and to the grocery store even during your suspension.

From a purely criminal defense perspective of course, agreeing to take the test could certainly give the Government some potentially damaging evidence against you. Therefore, in a perfect world, where there is no other consideration, it is relatively simple to say that you should refuse because it will keep the Government from gathering potentially very damaging evidence against you. Therefore, if you don’t care about losing your license for one year, and you remove this as a consideration, a good argument could be made to refuse the test. Few people, however, can say that their license means nothing to them. But for those who are in this position, the practical consequences may not be so terrible for refusing.

There is however, one potentially serious impact on the criminal case itself of a refusal. In New York, your refusal to take the test when asked could be used against you at your trial as evidence of your guilt. When there are no other considerations (like being able to drive legally) this issue boils down to an assessment of what would be the lesser of two evils. Would you rather deal with the results of a breath test in court or would you rather deal with trying to explain why you refused to take a breath test?

There are varying opinions on this. Some people are of the opinion that it is easier to attack the results of a machine than it is to convince jurors that you had a good reason to refuse to take the test. Others would prefer to take their chances with the jurors finding out about the refusal.

Of course the lower the reading on the machine, or the lower the likely reading on the machine, the more there will be to work with as far as mounting an attack on the machine. On the other hand, an extremely high reading is more difficult to attack.

From the perspective of economics, a defense of a driving while intoxicated case that involves experts attacking the machine is going to be considerably more costly than a defense where there is no machine to attack.

Has Someone Been Seriously Injured?

If there is a fatality or extremely serious injury to someone, then you might consider NOT taking the test.

First, if God forbid, the situation involves very serious injury or even death to a passenger or other driver, very serious criminal charges, up to and including homicide accusations could be made against you. In such serious situations, considerations such as your license to drive pale In comparison to your exposure in the criminal case. Therefore, the decision to blow or not to blow is something that probably ought to be made as if the licensing issue is not important. Realize that where there is serious physical injury the question of your consent may be moot and they may be able to require you to submit to a chemical test with or without your consent.

The Quick Answer in Conclusion

The quick answer, therefore, is that there really is no quick answer.

In your “average” dwi case, if there is such a thing, where the person wants to be able to drive legally in the near future, I think most New York criminal lawyers would agree that the person is better off taking the test than refusing.

In rarer situations, where for example there is extremely serious injury to someone involved, the stakes of the criminal case are more likely to outweigh considerations of drivers license privileges. Therefore, I think most criminal lawyers would agree that in such situations the person may be better off refusing to take tests.

The Police Officer who Arrests you is NOT your Lawyer!

Unfortunately, the request to take a breath test is not usually made in a context where the person involved has a lot of time to consider his options or consult with an attorney. In many cases the only person available to provide advice on this subject is the arresting officer. On many occasions clients have advised me that the choices they made as far as refusing to take the test or taking the test were made upon the advice of the arresting officer, amazingly enough.

Although the advice reportedly given by the police is not always the same, it seems, in my experience that clients report the police advising AGAINST taking the test more often than they advise people to TAKE the test. This is a rather strange phenomenon, considering that one might expect the police to advise people to follow the DMV rules, but this is something that has been consistently reported to me over the years by my clients.

I don’t believe that in most cases the police are intentionally providing bad advice. I think they may honestly believe what they say. And an argument can be made that they are right, as long as the people they are arresting are are unconcerned about their driving privileges and they are intending on taking the case to trial regardless.

But if the person is someone who has no real intention to pursue the case to a trial, the refusal may cause more trouble than provide a benefit. The benefit to refusal, if any, does not come into play unless there is a trial.

Prosecutors often have a policy of refusing to plea bargain cases in which there are refusals. On the other hand there is often some flexibility in plea bargaining dwi cases even for people who blow over the limit. As long as the blow is within certain limits (getting ever smaller), many prosecutors will consider offering a lesser (non-criminal) offense on a dwi.

Without a blow, however, that offer may never be made and the choice could be between going to trial or pleading guilty to dwi as charged (a misdemeanor). Further, the refusal will very likely result in the revocation of the license for one year with no conditional license possible.

This is a classic example of why you should not let the police officer who arrests you be your lawyer. He may be the only person there talking to you. But he is not your lawyer.

James Shalley, founding partner at Shalley and Murray and 27 year criminal defense lawyer in New York City has handled countless driving while intoxicated cases in his career, including frequent cases involving a failure to blow into the breath machine. He can help you too. Call or text us now for your free consultation.